Easton, Maryland – On July 6, 2023, the United States Court of Appeals for the Eleventh Circuit ruled that 14 C.F.R. § 91.315 which precludes the operation of limited category aircraft “carrying persons or property for compensation or hire” prohibits paid flight instruction in those aircraft, aircraft often loosely referred to as “warbirds.” Overlooking the 70-year history of the regulation and the FAA’s own contradictory statements upon its meaning, the Federal Appellate Court simply concluded that any person aboard an aircraft is being “carried,” and that, therefore, paid flight instruction is now unavailable to that segment of the industry.
The limited category aircraft airworthiness certificate first issued in 1946, just after the conclusion of World War II. Robert D. Schulte, Warbird’s Counsel, remarked that “14 C.F.R. § 91.315 and its predecessor regulation pre-dates the FAA itself” to 1950. He notes that “it is inconceivable that all of the hours of paid flight instruction that occurred in these aircraft over the last seven decades were somehow prohibited – and that only now has the FAA decided to enforce that prohibition.”
While the FAA argues that it was merely interpreting its own regulation, Schulte points out that “it is not an interpretation when an agency reverses over 70 years of practice; it’s a new rule subject to the Administrative Procedures Act, which is a Congressional mandate.” Schulte further notes that “the FAA sometimes forgets that it is not the law, but rather is bound by it.”
The decision is problematic for a number of reasons. First, it blindsides and sidelines an entire segment of the flight training industry. Second, it robs the economic vitality of several very expensive aircraft; and perhaps most strangely, makes it more difficult to secure flight training in aircraft that demand a high level of proficiency from instructors who do not and should not work without compensation, given their formidable skill set. While the FAA prides itself on maintaining “air safety,” and often publicly celebrates the importance of flight training, its nuevo position has made securing that flight training more difficult.
For its part, the FAA has announced that it may grant discretionary exemptions to allow those with “regular access” to limited category aircraft to receive paid flight training in them, but it has not defined what “regular access” means or made clear whether a pilot who simply wants to learn how to fly a limited category aircraft may do so or whether the administration will simply claim that the pilot simply has “no need to know” how to do so.
For now, it appears that only a select group of people will be permitted to pay for flight training in limited-category aircraft, thereby putting downward pressure on their economic value and the pool of individuals who can safely operate them.
“The Warbird decision is not simply about flight training, it too is about the rule of law itself,” Schulte notes. “When courts simply rubber-stamp agency decisions, they cede power to the executive branch, undermining the former’s very role in our three-part system of government. Courts have a constitutional duty to closely examine the actions of administrative agencies, including the FAA, whose power and size has exploded over the last four decades.”
Otherwise, he quips, “We are subjected to the dictates of unelected and unaccountable bureaucrats who have appeared on no ballot and who have stood for no election.”
“We rejected that manner of governance before – in 1776”. Further appeals are being considered. Schulte Booth, P.C.
Schulte Booth, P.C. is a law firm based in Maryland’s Baltimore / Washington D.C. metropolitan region. While the firm offers services in several other fields, founding member Robert Schulte has focused his practice largely on aviation law for nearly 30 years.
For more information, please see http://schultebooth.com/. Schulte Booth, P.C. Counsel for Warbird Adventures, Inc.